Air Corps officer reinstated ahead of dismissal appeal

The Court Martial Appeal Court has ordered “a stay” on the dismissal of an Air Corp officer from the Defence Forces, pending the outcome of an appeal against his conviction for calling a Lt Col “a little p***k”.

Last month, Comdt Niall Donohue, aged 47, attached to No 5 Support Wing of the Air Corps, became the first Defence Force officer to be dismissed in over 20 years when he was handed down the sentence as punishment for using abusive language to a superior.

His conviction arose out of an incident during Comdt Donohue’s annual appraisal at Casement Aerodrome in Dublin on January 30, 2009.

Today, the Court Martial Appeal Court of Ms Justice Fidelma Macken presiding sitting with Mr Justice Declan Budd and Mr Justice Daniel O’Keefe held there were “adequate grounds” put forward by lawyers representing Comdt Donohue, allowing it grant an order maintaining “the status quo”.

The court said the father of two’s appeal against both conviction and sentence, should be dealt with “speedily” as “a matter of priority”, given the circumstances of the case.

The Director of Military Prosecutions opposed the application for a stay on the dismissal.

Ms Eileen Barrington BL, for the DMP, said there would be “consequences”, including a “principle concern of discipline”.

The court heard a “stay” would result in a person “convicted of using bad language” being “back at work”.

Lawyers for the Director of Military Prosecutions also argued a ruling in Comdt Donohue’s favour would see him remain on “full pay”, and that this could cause “logistical difficulties” in the event his appeal fails.

The court was also told that the grounds of appeal being made out raised “procedural issues” which mirrored those contained in failed judicial review proceedings.

Mr Fergal Kavanagh SC, for Comdt Donohue, said in seeking the application, “the first of its kind”, the court was being asked to break “new ground”.

He argued his client had an “automatic” right of appeal” under the relevant legislation.

During the general court martial at Dublin’s McKee Barracks in May, Comdt Donohoe claimed his comments were misheard.

He has 28 years of military service and was praised by several of the defence witnesses.

Imposing the dismissal, military judge Col Tony McCourt had described the incident as “a gross breach of military discipline” which “can never be acceptable”.

Today, the court martial appeal court held it had “broad jurisdiction” to make the “stay” being sought.

It said it was “extremely cognisant” of the importance of “discipline” in the force, and allowed the application subject to conditions, including that the “type of work and ambit of it” be “entirely a matter” for superior officers of the Defence Forces.

The court said legal submissions in the case should be lodged by Thursday July 8.